Escobedo and the Slippery Slope of Irrelevancy

Sunday, May 8, 2005 | 0

In Marlene Escobedo vs. Marshalls; CNA Insurance Co. , (WCAB en banc)(2005)(GRO 0029816, GRO 0029817) 70 CCC ______, an en banc panel of the WCAB has determined that the changes made to LC 4663, as amended by SB 899, now allows apportionment of a pre-existing asymptomatic arthritic pathologic condition to an accepted industrial injury.

In Escobedo , "[a]pplicant sustained injury to her left knee on October 28, 2002, when she fell at her job as a sales associate with Marshalls, a retail clothing store. As a compensable consequence of that injury, she also developed right knee problems. Applicant testified that, prior to her fall, she had never had any knee problems or limitations, and she had never consulted a doctor about her knees. Although her treating physician, Dr. Cronin, had diagnosed her as having arthritis about ten years earlier, he did not impose any work restrictions as a consequence of her arthritis."

Applicant sought treatment from her treating physician, Dr. Woods, who performed surgery necessary to cure and relieve applicant from the effects of the industrial injury. Applicant became permanent and stationary (P&S), and Dr. Woods issued his P&S report. The WCAB noted, "With regard to the issue of apportionment, Dr. Woods noted that applicant had no history of any previous problems with her left knee, and thus he concluded that all of her disability was attributable to her industrial injury."

"Defendant's qualified medical evaluator ("QME"), Daniel Ovadia, M.D., evaluated applicant on March 15, 2004 and prepared a report on that date. He noted that a pre-surgical MRI of applicant's left knee revealed degenerative changes, in addition to the medial meniscus tear, and that post-surgical x-rays showed osteoarthritis in both knees."

With regard to apportionment, Dr. Ovadia stated: "The Applicant has obvious, significant degenerative arthritis in both knees and essentially worked in a fairly congenial environment. Although denying any prior problems with her knees, it is medically probable that she would have had fifty percent of her current level of knee disability at the time of today's evaluation even in the absence of her employment at Marshalls."

The matter proceeded to trial and a Findings and Award (F&A) was issued by the Workers' Compensation Administrative Law Judge (WCJ). "The WCJ determined that, overall, applicant's bilateral knee disability rated 53%, based on the factors of disability outlined in Dr. Ovadia's March 14, 2004 report. The WCJ, however, also apportioned 50% of applicant's permanent disability to non-industrial causation under section 4663, relying on Dr. Ovadia's opinion that one-half of the disability was caused by her preexisting degenerative arthritis."

The WCAB en banc panel affirmed the F&A, and in doing so, departed from a long line of precedent case law forbidding the apportionment of preexisting non-industrial asymptomatic pathology to an industrial injury. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980)(Supreme Court), 45 CCC 170 [50 percent of Normand's pathology was caused by exposure to harmful substances and the remainder to his smoking habit does not provide a basis for apportionment. It is disability resulting from, rather than a cause of, a disease which is the proper subject of apportionment; "pathology" may not be apportioned.] Reynolds Elec. etc. Co. v. Workmen's Comp. Appeals Bd. (1966) 31 CCC 421, [Thus, the acceleration, aggravation, or "lighting up" of a preexisting nondisabling condition is a compensable injury if work-related.] Fred Gledhill Chevrolet v. Ind. Acc. Com. (1964) 29 CCC 263, ["'If the resultant disability is entirely due to the industrial injury lighting up the previous dormant condition, then the employer is liable for that disability and there can be no apportionment.'"].)

In addition, the Escobedo decision discards the long-standing proposition that an employer takes the employee as he finds him at the time of injury. In other words, "compensation is not to be denied merely because the workman's physical condition was such as to cause him to suffer a disability from an injury which ordinarily, given a stronger, healthier constitution would have caused little or no convenience." ( Tannenbaum v. I.A.C. (1935) 4 Cal.2d 615 [52 P.2d 215, 20 IAC 390]) "An employer takes the employee as he finds him and must compensate him not only for the disability caused by the industrial injury, but also for that resulting from the aggravation or lighting up of a preexisting, nondisabling disease; the ultimate disability may be apportioned only when some part of it would have resulted-absent the industrial injury-from the normal progress of the preexisting disease." ( Zemke v. Workmen's Comp. App. Bd. (1968)(Supreme Court), 33 CCC 358).

As the rationale for apportioning 50% of Marlene Escobedo's accepted industrial knee injury to a pre-existing non-industrial asymptomatic arthritic pathologic condition, the en banc panel of the WCAB focused on new language in LC 4663(c), which provides for apportionment based on what approximate percentage of the permanent disability was caused by " other factors both before and subsequent to the industrial injury, including prior industrial injuries." (Emphasis added.)

"The language stating that apportionment may be based on 'other factors both before and subsequent to the industrial injury' does not limit what non-industrial factors may be considered as a cause of permanent disability purposes of apportionment. Thus, this language appears to require apportionment based on any 'other [non-industrial] factor,' either pre- or post-injury." (emphasis in opinion)

The en banc panel of the WCAB, after expanding the language of LC 4663(c) from "other factors" to "any other [non-industrial] factor," then enlarged the list of factors that can be apportioned as follows:

"[T]he 'other factors' now may include pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial medical evidence establishing that these other factors have caused permanent disability."

The inclusion of non-industrial pathology, and non-industrial asymptomatic prior conditions, as factors that can be apportioned to permanent disability sustained as a result of an industrial injury, is a clear departure from a long list of clearly established judicial interpretations to the contrary.

The en banc panel of the WCAB, in Escobedo, correctly notes, "a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal. 2d 399, 407 (a mere legal conclusion does not furnish a basis for a finding); Zemke v. Workmen's Comp. Appeals Bd., supra, 68 Cal.2d at pp. 799, 800-801 (an opinion that fails to disclose its underlying basis and gives a bare legal conclusion does not constitute substantial evidence); see also People v. Bassett (1968) 69 Cal.2d 122, 141, 144 ( the chief value of an expert's testimony rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion, and it does not lie in the mere expression of the conclusion; thus, the opinion of an expert is no better than the reasons upon which it is based)." (bold added)

However, notwithstanding the above mandates outlined in Escobedo, the WCAB overlooks the "bare legal conclusion" from defense QME Dr. Ovadia. In a "rush to judgment," Dr. Ovadia's opinion fails to outline "the material from which his&opinion is fashioned and the reasoning by which he&progresses from the material to the conclusion" in determining, "it is medically probable that she would have had fifty percent of her current level of knee disability at the time of today's evaluation even in the absence of her employment at Marshalls."

From a plain reading of the case, this bare-boned assertion by Dr. Ovadia is unsupported by any form of evidence based medicine (EBM) studies, or any empirical data. It is just an unsupported assertion, and the determination of 50% is as unsupported as a finding of 40%, 25%, or 75% ----- any of which degrees of apportionment could just as easily have been Dr. Ovadia's approximation of industrial causation. The Escobedo decision acknowledges that "substantial medical evidence establishing that these other factors have caused permanent disability" is a necessary requisite, but Dr. Ovadia's opinion is just an unsupported estimation.

Simply put, in the absence of specified EBM or empirical data, there is a glaring dearth of "material from which" Dr. Ovadia's "opinion is fashioned and the reasoning by which he & progresses from the material to the conclusion." (Bassett) It is well-settled the WCAB may rely on the medical opinion of a single physician unless it is "based on surmise, speculation, conjecture or guess." (See Place v. Workmen's Comp. App. Bd. (1970), 35 CCC 525). Dr. Ovadia's approximation of permanent disability (PD), apportionable to a non-industrial asymptomatic degenerative pathologic disease, is clearly based on surmise, speculation, conjecture or guess, in the opinion of this author.

By taking this giant, and in my view, impermissible giant leap, the WCAB has issued a decision where the footing for the foundation is clearly on a slippery slope. If unchallenged, Escobedo will open the door to incongruous decisions apportioning pathology, as well as novel asymptomatic non-industrial factors as contributing to the PD sustained as a result of an industrial injury, thus mitigating the defendant's financial exposure by allowing the PD to be apportioned downward.

As an example, my mother's brother was a diabetic. My mom is not. Let's say that I am a construction worker that pours and levels concrete driveways while wearing rubber boots, and I step on a rusty nail while on the job resulting in an infection that does not heal, and as a consequence, my foot is amputated. I can easily envision a defense QME relying on 'genetic heredity' and 'propensity' as an allowable "any other [non-industrial] factor," appropriate to rely upon for apportioning the amputation of my foot to the non-industrial undiagnosed asymptomatic possibility of diabetes.

As another example, I was born with red hair and freckles. Naturally, when I go out in the sun, my skin gets pink (sun burned) quite quickly. Let's say that my job as a ditch-digger requires me to spend long hours in the sun shoveling dirt, and I develop melanoma. I can easily predict a defense QME absurdly apportioning the melanoma to my red hair and freckles.

In Escobedo, the WCAB recites the proper standard for interpreting a statute ("The best indicator of legislative intent is the clear, unambiguous, and plain meaning of the statutory language. (DuBois v. Workers' Comp. Appeals Bd., supra, 5 Cal.4th at pp. 387-388; Gaytan v. Workers' Comp. Appeals Bd. (2003) 109 Cal.App.4th 200, 214 [68 Cal.Comp.Cases 693]; Boehm & Associates v. Workers' Comp. Appeals Bd. (Lopez) (1999) 76 Cal.App.4th 513, 516 [64 Cal.Comp.Cases 1350].) When the statutory language is clear and unambiguous, there is no room for interpretation and the WCAB must simply enforce the statute according to its plain terms. (DuBois v. Workers' Comp. Appeals Bd., supra, 5 Cal.4th at p. 387; Atlantic Richfield Co. v. Workers' Comp. Appeals Bd. (Arvizu) (1982) 31 Cal.3d 715, 726 [47 Cal.Comp.Cases 500]; Cal. Ins. Guar. Ass'n v. Workers' Compensation Appeals Bd. (Karaiskos) (2004) 117 Cal.App.4th 350, 355 [69 Cal.Comp.Cases 183]"), then ignores this standard.

LC 4663(a) is crystal clear: "Apportionment of permanent disability shall be based on causation." This does not include "pathology" or "asymptomatic prior conditions."

If this novel "any other [non-industrial] factor" standard in Escobedo is not successfully challenged, we will see PD apportioned by the defendant's QME to 'genetic heredity,' 'propensity,' and indeed, red hair and freckles.

This is a slippery slope, with no limitation as to the range of non-industrial pathologic and non-industrial asymptomatic prior conditions that can be used to apportion industrial PD.

by York McGavin. York can be contacted at ymcgavin@socal.rr.com.

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